The Law of Advertising Outrage

Abstract

Abstract: This article examines the stimulation of audience outrage, both as a marketing strategy and as a subject of legal regulation. A brief history of advertising in the United States reveals repeated yet relatively infrequent attempts to attract consumer attention through overt transgressions of social norms relating to sex, violence, race, and religion. Natural concerns over audience reaction limited use of this particular advertising tactic as businesses needed to be careful not to alienate prospective purchasers. But now companies can engage in “algorithmic outrage”—social media advertising meant to stimulate individual feelings of anger and upset—with less concern for a consumer backlash. The ability to segregate audiences based on psychological profiles enhances the effectiveness and reduces the risk of shocking advertising. Should anything be done about outrageous advertising? Different government regulators have long sought to protect public sensibilities from shocking commercial appeals. Recently, however, the legal doctrine undergirding advertising regulation has changed. The courts have become skeptical of efforts to police advertising outrage, recognizing First Amendment arguments on behalf of commercial speakers that once would have been given no legal credit. The article closely examines the 2017 US Supreme Court decision Matal v. Tam , which prompted the end of a nearly century-old prohibition on the registration of “scandalous” trademarks, to illustrate this trend.